Agreeing with the Opposition’s Senior Counsel (SC) Douglas Mendes, that the President must engage the Leader of the Opposition in meaningful
consultation with regards to the appointment of a Chairman of the Guyana Elections Commission (GECOM), Caribbean Court of Justice (CCJ) Judge Winston Anderson said that it was a tragedy that the matter had to reach the apex court.
Justice Anderson said, “I wouldn’t have thought that anybody would want the court to be the ultimate decider, or put another way, to get too intrusive in the process and hopefully with the kind of guidelines which might be given.
“The two leaders can in fact agree so that we don’t have this kind of task before us.”
The Judge was at the time responding to submissions made by well-known Trinidad and Tobago-based Senior Counsel Mendes, who along with Attorney-at-Law Anil Nandlall, alleges that President David Granger failed to properly exercise his discretion in the appointment of Justice (RTD) James Patterson as Chairman of the electoral body, and that the appointment was in breach of Article 161 (2) of the Constitution of Guyana.
Yesterday, a panel of judges including the court’s President, Adrian Saunders, and Justice Anderson heard marathon submissions from lawyers for and against the appointment which was made by the President in October 2017. The Constitutional challenge to Justice Patterson’s appointment is now before the CCJ for final determination after People Progressive Party (PPP) Member of Parliament Zulfikar Mustapha, who instigated a challenge against it, was unsuccessful in both the High Court and the Appeal Court.
SC Mendes held that the President needs to consult with the Leader of the Opposition (Bharrat Jagdeo) and that they may during open discussions come up with a name they are both happy with. SC Mendes said that the President needs to be “open and transparent about his thinking.”
Referencing the written judgment of the Court of Appeal in relation to this matter, SC Mendes indicated that he will not be relying on it since it is not clear to him if the court decided whether the President was required to give reasons for rejecting the three lists, each containing six nominees for the post, which were submitted (by Jagdeo).
While he acknowledged that the President has the power to make a unilateral appointment, SC Mendes argued that the Head of State ought to have provided reasons for his rejection of the lists since the provisions of that Article 161 (2) is to achieve an appointment that is acceptable to both the President and parliamentary Opposition.
While this was SC Mendes’s position, Queen’s Counsel Hal Gallop, one of the lawyers representing the State submitted that on appeal to the Court of Appeal one of the Judges held that the President did indeed gave reasons for rejecting the lists. Whether the President needed to disclose his reasons for deeming the lists unacceptable or whether he needed to keep it to himself was a question posed by Justice Saunders.
Queen’s Counsel Ralph Thorne, who is also representing the State along with Attorney General Basil Williams, on the other hand, reasoned that the Leader of the Opposition needed to submit a list for consideration and it was up to the President to determine if it is acceptable.
“We are arguing that acceptability is not a joint exercise,” said Queen’s Counsel Thorne. There is nothing in the Constitution which provides for dialogue between the President and Leader of the Opposition. He said that such dialogue is held after the Leader of Opposition submits his list of nominees. But Justice Saunders questioned the worth of consultations afterwards.
But Thorne reasoned that it was not required for the President to disclose which person on the list was not acceptable.
Moving on Justice Saunders asked Gallop, “How do we know on what basis were these names not acceptable. The Constitution says that he (the President) must do certain things if the names are not unacceptable…”
“But the Constitution does not say that (the President) must gave reasons…it does not say that,” Gallop stressed. QC Gallop held that SC Mendes failed to indicate that there was a duty imposed by statue or common law for the President to give reasons for rejecting the lists of nominees submitted by the Leader of the Opposition.
According to Justice Saunders, based on Thorne’s submissions he was getting the notion that the President could appoint whoever he wishes to fill the post—which was the state of affairs before the constitution was amended to include the Carter- Price Formula. In this regard, Justice Saunders told Thorne he appeared to be fixed on what was there before and that there was the Herdmanston Accord and deliberations in which people said they did not want those sorts of practices anymore.
Justice Saunders went at length to explain that based on his understanding of Article 161 (2) the President is not immune or excused from acting in accordance, taking into account relevant consultation and acting in good faith. The Judge’s views were in some way contrary to what lawyers for the State have contended.
Nevertheless, SC Mendes asked the CCJ that if it finds that Patterson’s appointment is not valid, its judgment should be suspended if the court rules that the No-Confidence motion was validly passed which would initiate early elections. This course, he said, should be taken to avoid any disruption to the election process. The appeals in relation to the No-Confidence motion cases come up for hearing this morning before the CCJ.
Article 161 (2) was the premise for the lawyer’s arguments.
That article states… “the Chairman of the Elections Commission shall be a person who holds or who has held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court or who is qualified to be appointed as any such judge, or any other fit and proper person, to be appointed by the President from a list of six persons, not unacceptable to the President, submitted by the Leader of the Opposition after meaningful consulate with political parties represented in the National Assembly.
“Provided that if the Leader of the Opposition fails to submit a list as provided for, the President shall appoint a person who holds or had held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court or who is qualified to be appointed as any such judge.”
Justice Anderson asked SC Mendes if he would say the consultation process between the two leaders was required via Article 161 (2). The Senior Counsel replied, “Implicitly it is required. Implicitly.”
In response, Justice Anderson said, “Yeah, Yeah. It is a list of six persons not just a list in a sort of an abstract way. So from what you have said and reading the information before us… that meaningful consultation had not really taken place.”
“It did not take place at all,” SC Mendes insisted. SC’s arguments were based on the criterion for eligibility, the selection process which includes persons recommended by the Leader of the Opposition and the appointment process, which lies solely with the President.
He said, “The power was controlled to the extent that he (the President) has to make the appointment from a certain category of persons, either persons who are judges, former judges or persons qualified to be a judge. But the discretion was his (the President) alone. It was his appointment to make alone.”
Essentially SC Mendes dismissed the arguments made by the State saying that both Queen’s Counsel on the ground that Guyana has a modern Constitution that imbues openness and transparency. He said that both QCs Thorne and Gallop were trying to take Guyana into the past, into a situation where you have a Monarchy.
SC Mendes said that their submissions embodied a President who is exercising powers that are unreviewable.
“That is not this (Guyana) constitution. This constitution goes to great pains to ensure that the rule of law is respected and that democratic principles are followed,” he added.
However, Gallop argued, “I respectfully urge the court to find what the learned trial judge did. That the absence of reasons did not adversely affect the decision making process. In fact, I also urged the court to observe that one Justice of Appeal said reasons were given. She saw in the statements and in the correspondence between the President and Leader of the Opposition, reasons for his (the President’s) decision.”
He asked the court to disallow the appeal against Justice Patterson’s appointment, disregarding the position of SC Mendes which is that both leaders should act in good faith, in that regard. Following arguments, President Saunders announced that the court has reserved its decision, and that notices will be sent to the parties.
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